11/17/2011

You can also say, as Ed Whelan does, that this is a victory for the proponents of Proposition 8, but I have always agreed with Patrick that “[t]here is more at stake here than gay marriage.” Frankly, we think so similarly on this that I suspect that if we both wrote independently on the issue that we would both say almost exactly the same things. I can go through the minutiae, but the essence of the issue was this. In California, laws can be passed and constitutional amendments can be ratified by referendum. The essential question before the California Supreme Court was who had the right to defend such a law or amendment when challenged in court. The opponents of Proposition 8 wanted to say that only the governor and/or the attorney general had the right to defend it. And in this case, neither one was willing to do so. Indeed, when he was Attorney General, Jerry Brown argued that Proposition 8 was unlawful under the State and Federal Constitutions.

But if you step back for a moment, you realize how insidious the argument is. Whatever you think about referendums (I am personally wary of them), the animating idea behind them is that you can’t trust the pinheads in government to fully represent your interests, and thus “we the people” should be able to take matters into our own hands and change the law or the Constitution not only without the consent of any elected official, but over their objections as well. But if only the governor or attorney general can defend the law in court, that grants to those politicians a very real veto power over the law; because if they refuse to defend it, then it is very likely to be struck down. It is very easy to win a ball game when the other side doesn’t field a team. So the very spirit of the idea of changing the law by referendum is violated if there is no one there to defend that law in court.

So it is very gratifying that the California Supreme Court agreed with that thinking. From their introduction to the opinion:

In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8 ) that added a section to the California Constitution providing that ―[o]nly marriage between a man and a woman is valid or recognized in California‖ (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent‘s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials‘ discretionary governmental decisions while in office… The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.

…because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voterapproved initiative measure in order ―to guard the people‘s right to exercise initiative power… or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state‘s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people‘s behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure‘s defense. In this manner, the official proponents‘ general ability to appear and defend the state‘s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process.

So the upshot of all of this is that this increases the chances that there will now be a fight in the Ninth Circuit over the validity of Proposition 8; a fair fight, where both sides are represented by people who want to win. The Ninth Circuit still has to decide whether this state-based standing is sufficient for federal purposes, but I am cautiously optimistic that they will rule this way—or if not, they will be corrected by the (U.S.) Supreme Court. I believe this means that now we will have a fair fight. May the side with the best arguments win.

I will also note that this is an example of what I was saying about liberal judicial thinking. This is the exact same court that has tried very hard by activist rulings to make gay marriage legal in California. But they correctly recognized that there were larger issues at stake and that the next time it might be their ox that is gored. Today the proponents get to defend an amendment banning gay marriage, but the next time it might be an amendment imposing pollution controls, or whatever they might like as an issue. It is not that they don’t have a liberal agenda, but that it doesn’t allow them to be so unprincipled that they would harm the referendum process in the pursuit of a narrow policy goal. That is the essential difference between judicial liberalism and political liberalism and that is why there is not a single dissent from this decision.

63 Responses to “Breaking: The California Supreme Court Has Vindicated the Referendum Process”

The gay marriage aspect of this is not very important to me. I just want a sane process.

Californians also deserve a sane process by which to amend their constitution.

I agree with Aaron on several points. Referendums are not my favorite way to see constitutions changed, but that beats the hell out of philosopher king pinheads deciding what the constitution should be.

And it’s disturbing in the extreme to see ‘constitutional scholars’ attempt to prevent a case from being decided on the merits.

You shut down a proper amendment to the state constitution, then you shut down that popular side’s ability to represent itself in court?

It’s not about gay marriage. It’s about the question: who has the authority to exercise the state’s interest in defending its constitution in federal court? In particular, when the constitution is amended by an initiative, and the AG refuses to defend it, what happens?

The initiative was originally created to provide the people a safeguard against the state government, when the state government was not acting in the people’s interest.

This decision vindicates the principles underlying its creation.

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I think it’s a slam-dunk that the decision is sufficient for federal purposes. The issue isn’t whether the official proponents have independent standing; its’ whether they can *assume the mantle of the state’s standing* and assert the state’s interest in the case.

Everyone agrees the state has standing.

Everyone *would* agree that the AG could, as an agent of the state, assert the state’s standing. Why? Because state law says so.

Parallel logic suggests that, once the state has said the official proponents can assert the state’s standing, that they’re effectively and for this limited purpose acting as agents of the state, everyone should agree that they can do so. The state has the authority to decide to whom to delegate this authority.

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My guess is that the 9th circuit will issue a decision upholding the district court and that this is set for a Supreme Court decision in the 2012-2013 term.

“…It’s not about gay marriage. It’s about the question: who has the authority to exercise the state’s interest in defending its constitution in federal court? …”

Comment by aphrael — 11/17/2011 @ 1:01 pm

Good commentary, good post. I can’t really say that I like the odds that the media will handle this fairly, regardless of the outcome. To them the narrative will be about gay marriage, and only that. I don’t think they’re capable of thinking about it beyond that point.

Kman: the decision limits the state’s delegation to the official proponents of the initiative. The process for determining that is well defined and explained in the decision, and is already used in other situations. Your particular posed problem cannot occur.

I’m an ardent (d)emocrat. I’ve always been a strong supporter of the initiative system. I think people abuse it regularly, and it’s led to some terrible outcomes, but I think it’s vastly preferable to the alternative, which has also led to terrible outcomes.

Proposition 8 was a terrible outcome. It’s passage brought me closer to despair about the wisdom of the people than anything else which has happened in my lifetime.

But … proposition 8 isn’t the substance of this case. It’s the trigger, the wedge in the door which opened up the discussion of a seperate constitutional issue. An issue which I actually think is *more* important than the difference between ‘marriage’ and ‘domestic partnerships’ under California law.

yeah, let me clarify. i am wary of the idea but i am not 100% convinced for or against [referendums]. i think we can’t do everything by direct democracy, its just not practical, but maybe “we the people” need a means of controlling the process.

it might be a case of it being the worst idea, except for all the alternatives.

and in any case, if you are going to have a referendum process, this is how you should read the issue of standing. you try to make the constitution fulfill its purpose instead of laying boobie traps that frustrate it.

in any case, if you are going to have a referendum process, this is how you should read the issue of standing. you try to make the constitution fulfill its purpose instead of laying boobie traps that frustrate it.

Agreed. You interpret the law in compliance with its purpose.

Note that this decision is limited to cases where the AG bows out; it’s not clear that the official proponent would be able to bring a case *while* the AG was doing so.

But…if the proponents of the referendum were found to lack standing ab initio, the original decision would not stand. On remand, the judge would not have been able to void the law – though he could rule in favor of the specific defendants before him.

“…there will now be a fight in the Ninth Circuit over the validity of Proposition 8; a fair fight…”

Gay. California native. Got hitched while the getting was good. Agree with this decision. But a question for you legal eagles – what if the state does chose to defend but only offers a lackluster defense? Would the proponents lose standing if the state chose to defend?

If the AG did not zealously defend his client, he would violate his ethical duty as a lawyer. If one undertakes a case, one must defend/prosecute honestly and zealously.

However, doesn’t seem that such ethical concerns are very stringent in the political realm (eg Holder arguing for a court to apply a legal standard detrimental to upholding DOMA and then bowing out from defending it).

Now that the CA SC has determined that advocacy group(s) may pursue a Proposition in Court when the State declines to, can this ruling be used to re-open the litigation on 187, after Gray Davis refused to pursue an appeal to the 9th Circuit?
It would seem to allow that, but is there a time limit?

Ahhhhhhhhhh yes because opposing gay marriage means your like the duggars and want to have a lot of babies……………your a mental deficit.

Comment by DohBiden — 11/17/2011 @ 7:49 pm

Actually, what he’s saying is that this acceptance of gay marriage is in the future for California, because Prop 8 passed by narrow numbers.

And so be it. I would rather find ways for each state to go their own way on this. I realize that leads to some hassles, but I don’t think one state should have to recognize another state’s marriage, and then each state should just do whatever they want.

what we’ve established is that in California gay marriage hinges on a 51% vote

There’s nothing really wrong with that, hf. It hangs on a similar vote in every state, whether through the state’s legislature or the referendum process.

What we’ve established is what the framers of our government intended: as societies and their mores change, the legislature can enact laws to reflect those changing mores. That’s far better than inventing rights out of the penumbra of the Constitution.

what we’ve established is that in California gay marriage hinges on a 51% vote

No, it doesn’t. The last go-around the opponents were dishonestly forced to take the “yes” side of the ballot. Next time they will be on the “no” side. And that means that the significant percentage of voters who always vote “no” on referendums will count against gay marriage instead of for it.

I will also note that this is an example of what I was saying about liberal judicial thinking. This is the exact same court that has tried very hard by activist rulings to make gay marriage legal in California.

Note Justice Joyce Kennard’s special concurrence.

Back in 2004, she authored a concurring/dissenting opinion in Lockyer v. City and County of San Francisco, 95 P.3d 459 at 503 to 508 (Cal. Sup. Ct. 2004) (J. Kennard, concurring and dissenting) In that opinion, she stated that “[t]he high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution. ” id. at 504

She later joined the majority opinion in In Re Marriage Cases, 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] (Cal. Sup. Ct. 2008), and wrote a separate concurring opinion, id. at 857 to 860.

Thus, this explains why plaintiffs did not pursue this suit in California Superior Court.

. I can’t really say that I like the odds that the media will handle this fairly, regardless of the outcome. To them the narrative will be about gay marriage, and only that.

Why does the media support that cause?

But…if the proponents of the referendum were found to lack standing ab initio, the original decision would not stand. On remand, the judge would not have been able to void the law – though he could rule in favor of the specific defendants before him.

Is that not what the original judge did anyway?

Now that the CA SC has determined that advocacy group(s) may pursue a Proposition in Court when the State declines to, can this ruling be used to re-open the litigation on 187, after Gray Davis refused to pursue an appeal to the 9th Circuit?
It would seem to allow that, but is there a time limit?

Not advocacy groups, just proponents- for now.

As for 187, the case was be reopened if 187 were enforced against someone who was not a party to the case. (a court order order binds the parties. For example, even if the district court ruling is upheld, the Clerk of Orange County, for example, would not be in contempt for following Prop. 8)

The last go-around the opponents were dishonestly forced to take the “yes” side of the ballot.

The last go-around the opponents were dishonestly forced to take the “yes” side of the ballot.

How so?

By means of the state SC dishonestly ruling that the then-existing bar on same-sex marriage, which had passed a referendum, was against the state constitution. Thus Prop 8 had to be fought from the “yes” side.

No, I don’t accept that anybody could honestly believe that. They knew damn well that the constitution couldn’t possibly require the state to recognise same-sex couples as married, but they ruled that it did anyway, just because they could.

you mentioned that the judiciary could ultimately strike down Prop. 8 by essentially ruling that once marriage is defined to encompass same-sex unions, it can not be redefined back to the meaning of a “union for life of one man and one woman in the holy estate of matrimony”.

How is that consistent with Crawford v. Board of Education, 458 U.S. 527 at 535 (1982) where the Supreme Court rejected “the contention that, once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede“? A straightforward application of Crawford means that when it comes to eliminating same-sex “marriage”, equal protection only comes into play if it required establishing same-sex “marriage” in the first place. Are there really enough votes on the Supreme Court to overrule the principle iterated in Crawford?

Furthermore, such a ruling would imply that people in some states have greater protections under the Constitution than people in other states. How does that not violate equal protection?

Michael E, it would depend on a finding that the reversal was motivated only by animus, which would bring it under Roemer.

Which means as long as it meets the appropriate level of scrutiny, it would not fall under Romer. That written, there is a long line of cases that demonstrate that refusing to extend the definition of marriage to include same-sex unions satisfies rational basis review, with Lui v. Holder, 2:11-CV-01267-SVW-JCG (C.D. Cal. Sep. 28, 2011) being the most recent case, (citing Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) in upholding DOMA), and In Re Marriage of J.B. and H.B., 326 S.W.3d 654
(Tx. 5th Cir. Ct. of Appeal 2010), being the most recent case. (upholding Texas’s Proposition 2)

California Proposition 187 (also known as the Save Our State (SOS) initiative) was a 1994 ballot initiative to establish a state-run citizenship screening system and prohibit illegal aliens from using health care, public education, and other social services in the U.S. State of California. Voters passed the proposed law as a referendum in November 1994; it was the first time that a state had passed legislation related to immigration, customarily an issue for federal policies and programs.[1] The law was challenged in a legal suit and found unconstitutional by a federal court. In 1999, Governor Gray Davis halted state appeals against the ruling.